1. Under K.S.A. 21-3401(b), felony murder is the killing of a human being committed in the
commission of, attempt to commit, or flight from an inherently dangerous felony as defined
in K.S.A. 21-3436 and amendments thereto.

2. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there
is a real possibility the jury would have returned a different verdict if the trial error had not
occurred.

3. Aiding and abetting means to knowingly associate with an unlawful venture and
participate
in a way which indicates the participant is willfully furthering the success of the venture.

4. When reviewing challenges to jury instructions, we are required to consider all the
instructions together, read as a whole, and not to isolate any one instruction. If the
instructions properly and fairly state the law as applied to the facts of the case, and a jury
could not reasonably have been mislead by them, the instructions do not constitute reversible
error even if they are in some small way erroneous.

5. Where there is evidence supporting a theory of liability as an aider and abettor, following
PIK
Crim. 3d 54.06, it is proper to instruct the jury that a person who intentionally aids another
to commit a crime is also responsible for any other crime committed in carrying out or
attempting to carry out the intended crime, if the other crime was reasonably foreseeable.

6. Failure to request a severance is deemed a waiver of the right to request severance.
K.S.A.
22-3204.

7. Cumulative trial errors, when considered collectively, may be so great as to require
reversal
of the defendant's conviction. The test is whether the totality of circumstances substantially
prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be
found upon this cumulative effect rule, however, if the evidence is overwhelming against the
defendant.

Mary Curtis, assistant appellate defender, argued the cause, and Steven
R. Zinn, deputy
appellate defender, was with her on the brief for appellant.

Michael A. Russell, assistant district attorney, argued the cause, and
Terra D. Morehead,
assistant district attorney, Nick A. Tomasic, district attorney, and Carla J.
Stovall, attorney general,
were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.: This is a direct appeal from jury convictions of first-degree felony murder,
conspiracy to commit aggravated robbery, and aggravated battery. The defendant, Henton
Bryant,
raises five issues, claiming: (1) the felony-murder rule, K.S.A. 21-3401(b), does not apply to the
killing of his co-felon under the facts of the case; (2) he was entitled to have the jury determine, as
a defense to felony murder, whether the killing of his co-felon was done in lawful self-defense by
the
intended robbery victim; (3) the aiding and abetting jury instruction was clearly erroneous
requiring
reversal of all three convictions; (4) it was error for him to be tried jointly with a codefendant
despite
the failure to request a severance of trials; and (5) cumulative trial errors substantially prejudiced
him
and denied him a fair trial. Our jurisdiction is under K.S.A. 22-3601(b)(1), a maximum sentence
of
life imprisonment imposed.

We find no error and affirm.

FACTS

On the afternoon of June 11, 2000, Charlie Gray and Henton Bryant drove to the home of
Justin Holtsclaw and asked if he would like to spend time with them. This was nothing unusual.
Gray and Holtsclaw were best friends, and Gray dated Holtsclaw's sister. They often spent time
together. Holtsclaw testified that after they had been driving around for a while, Gray spoke with
someone on his cell phone and made arrangements to meet at a car wash at 18th and Minnesota,
Kansas City, Kansas. At the car wash, Holtsclaw testified Carlos Castro approached their car and
made arrangements with Gray to sell him a kilogram of cocaine. Unwilling or unable to complete
the
transaction at the car wash, Castro invited Gray and his companions to his apartment. According
to
Holtsclaw, en route to Castro's apartment, Gray and Bryant informed him that they intended to
rob
Castro of his drugs and asked him to serve as their lookout during the robbery. Holtsclaw
testified:

"[State]: You were supposed to rob - -

"[Holtsclaw]: The individuals in the car.

"[State]: And was there any discussion between you all about

who was gonna do what or what or who was gonna - - you know,

what everyone's involvement was gonna be?

"[Holtsclaw]: Yes.

"[State]: Tell me what that was.

"[Holtsclaw]: I was supposed to watch out, and Charlie was supposed to make
sure
everything in the front room was okay, and [Bryant] was supposed to rob'em."

Following Castro from their meeting place to his home, Gray, Bryant, and Holtsclaw
arrived
just as Castro and two occupants of his vehicle, Luis Montenegro and Ismael Ramirez, were
entering
Castro's apartment. Holtsclaw testified that before entering Castro's apartment, Gray and Bryant
each
removed a pistol from hiding places in Gray's car and placed them in their pants.

Moments later, Gray, Bryant, and Holtsclaw approached Castro's door and were invited
in.
At trial, both Ramirez and Holtsclaw agreed Castro was holding a package containing what they
believed to be a kilo of cocaine when the trio entered.

Castro immediately asked Bryant to follow him to the apartment's bathroom to conduct
the
transaction. As Bryant followed him to the bathroom, Gray and Holtsclaw entered the apartment.
While awaiting the completion of the transaction in the bathroom, Gray paced the living room of
the
small apartment, Holtsclaw remained standing near the door, and Ramirez and Montenegro sat in
the
living room.

Within moments, both Holtsclaw and Ramirez heard a gunshot and screams from the
bathroom. Holtsclaw testified that Montenegro then stood up and began firing a semi-automatic
pistol at Gray and him. In Ramirez' version of events, however, he testified that Gray pulled a
pistol,
pointed it at him, and threatened, "[Y]ou guys are gonna die." According to Ramirez,
Montenegro
then drew his pistol in reaction to the threat and fired at Gray.

Holtsclaw and Ramirez agreed that in the confusion, Bryant ran from the bathroom, went
through the locked screen door, and made good his escape with Castro's drugs. Holtsclaw
testified
Montenegro followed Bryant out the door and fired a few shots at Bryant as he ran. Ramirez
then
hurried to the bathroom in response to Castro's calls.

After Castro was taken to the hospital by friends, Kansas City, Kansas, Police Department
detectives contacted him. Following questioning, Castro consented to a search of his apartment.
When Detective Golubski arrived there, he found Gray's body just inside the apartment door. A
medical examiner testified Gray had died quickly as a result of massive internal bleeding caused by
multiple bullet wounds to his chest and back.

Police never found the weapons involved in the shootings nor the cocaine Holtsclaw and
Ramirez claimed Bryant took from the scene. Following the killing, Montenegro fled the
jurisdiction
and has remained unavailable.

On June 14, 2000, the State filed a criminal complaint against both Bryant and Castro.
The
following day the State amended the charges against Bryant to include felony murder, conspiracy
to
commit aggravated robbery, and aggravated battery. The relevant portions of the complaint
pertaining to Bryant read as follows:

"[O]n or about the 11th of June, 2000, one Henton Bryant did
unlawfully and feloniously, in the
perpetration, attempt to perpetrate, or flight from an inherently dangerous felony, to wit:
Aggravated
Robbery or Sale of Controlled Substances, kill a human being, to wit: Charles Gray, in violation
of
K.S.A. 21-3401. (First degree Murder, Off-Grid, Person Felony)

. . . .

"Count V

". . . [O]ne Henton Bryant did . . . unlawfully, willfully and feloniously
enter into an agreement
with Charles Gray, deceased, and a juvenile, to commit the crime of Aggravated Robbery, as
defined
by K.S.A. 21-3427, and in furtherance of such agreement overt acts were committed, to-wit:
Carlos
Castro, the intended robbery victim, was shot, and property was taken from him, all in violation of
K.S.A. 21-3302. (Conspiracy to Commit Aggravated Robbery, Severity Level 5, Person Felony).

Castro was also charged in the same complaint with felony murder ­ with the sale of
cocaine
alleged as the underlying felony ­ and possession of cocaine and marijuana with the intent
to sell.
After a joint trial, a Wyandotte County jury found Bryant guilty on all counts on November 13,
2000.
As to Castro, the jury hung on the felony-murder count and found him guilty of possession of
marijuana with the intent to sell and guilty of possession of cocaine, a lesser included offense.
Bryant's motion for a new trial alleging various trial errors was denied.

ANALYSIS

Issues 1 and 2: Does the felony-murder rule apply to the killing of co-felon

Gray and, if so, is Bryant entitled to a self-defense jury instruction?

Felony murder is the killing of a human being committed in the commission of, attempt to
commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and
amendments
thereto. K.S.A. 21-3401(b). Bryant essentially contends that, as a matter of law, the
felony-murder
rule does not apply to his case because of our holding in State v. Murphy, 270 Kan.
804, 19 P.3d 80
(2001). There, three individuals entered a residence to commit a robbery, and an occupant shot
one
of the intruders to death. We held the felony-murder rule would not apply, stating:

"[A] felon may not be convicted of felony murder pursuant to K.S.A. 21-3401(b) for the
killing of
his co-felon caused not by his acts or actions but by the lawful acts of a victim of aggravated
robbery
and kidnapping acting in self-defense for the protection of his residence and the occupants
thereof."
270 Kan. 804, Syl. ¶ 2.

Accordingly, Bryant argues that his co-felon, Gray, was shot and killed by Montenegro, who
acted
lawfully in self-defense against Gray's attempt to rob him. The State disagrees, and distinguishes
Murphy. The parties do agree, however, that the issue presented is a question of law
over which our
review is unlimited. State v. Sophophone, 270 Kan. 703, 705, 19 P.3d 70 (2001).

Both parties cite extensively to the felony-murder cases of not only Murphy
but also
Sophophone. In Sophophone, the defendant, along with three others, ran
from their burglary when
police arrived. Defendant was captured, handcuffed, and placed in a police car. Thereafter, a
police
officer chased another of the burglars who shot at the officer. The officer returned fire, killing the
burglar. We held the felony-murder rule would not apply; our precise holding was similar to that
in
Murphy quoted earlier:

"A felon may not be convicted of felony murder pursuant to K.S.A. 21-3401(b) for
the
killing of his co-felon, caused not by his acts or actions but by the lawful acts of a law
enforcement
officer acting in self-defense in the course and scope of his duties in apprehending the
co-felon, who
was fleeing from an aggravated burglary in which both felons had participated."
Sophophone, 270
Kan. 703, Syl. ¶ 6.

We stated in Sophophone that our decision was not inconsistent with
State v. Hoang, 243
Kan. 40, 755 P.2d 7 (1988), where we had extended the reach of the felony-murder rule from the
killing of "innocents" to the killing of a co-felon. We additionally stated in Sophophone
that our
decision was not inconsistent with State v. Lamae, 268 Kan. 544, 998 P.2d 106
(2000), which also
applied the felony-murder rule to the killing of a co-felon. 270 Kan. at 713.As a
result, Sophophone
and Murphy simply reveal that the felony-murder rule does not apply when the
lawful acts of either
a law enforcement officer or a victim of a crime cause the death of a co-felon. See
Sophophone, 270
Kan. at 706 ("it is only because the act which resulted in the killing was a lawful one
by a third party"
that a question arose as to the application of the felony-murder rule); Murphy, 270
Kan. at 809
(likening the lawful act of the victim in Murphy to the lawful
act of the law enforcement officer in
Sophophone and adopting the reasoning of Sophophone).

Clearly, Sophophone and Murphy are not applicable here because
Gray, Bryant's co-felon,
was not killed by a law enforcement officer or by the lawful acts of a victim acting in self-defense
for
the protection of his residence and the occupants thereof. Therefore, Bryant's claim that, as a
matter
of law, our holding in Murphy requires his conviction for felony murder to be
reversed has no merit.

K.S.A. 21-3214 not only reinforces our holding but also rejects Bryant's related argument
described in Issue 2 that he was entitled to have the jury instructed it is a defense to felony murder
that the killing was done in lawful self-defense by the intended victim of a robbery. Our
legislature
has specifically defined those circumstances where a person is justified in using force in defense of
a person (K.S.A. 21-3211), in defense of a dwelling (K.S.A. 21-3212), or in defense of other
property
(K.S.A. 21-3213). It has also specifically barred the justification defense described in these
sections
for a person who "[i]s attempting to commit, committing, or escaping from the commission of a
forcible felony." K.S.A. 21-3214(1). Moreover, in State v. Mitchell, 262 Kan. 687,
696, 942 P.2d
1 (1997), we specifically held the self-defense instruction was not available to a participant in a
forcible felony which underlay felony murder ­ just as in the instant case, i.e.,
sale of cocaine.

In that case, the circumstances of the cocaine sale showed the threat or use of physical
force
or violence against a person since both the buyer and seller carried and used firearms. Similarly,
Gray
and Montenegro both carried firearms in a drug deal "gone wrong." Even though the evidence
was
conflicting whether Gray threatened Montenegro before Montenegro shot and killed him, it is
clear
that Montenegro was an active participant in the sale of cocaine, a forcible felony.

Issue 3: Did the district court commit error in submitting an aiding and abetting
instruction
to the jury?

Bryant next claims the aiding and abetting jury instruction was not applicable to any of the
three felony charges submitted to the jury. That instruction, based on PIK Crim. 3d 54.06, which
is
entitled "Responsibility For Crimes of Another-Crime Not Intended," reads as follows:

"INSTRUCTION NO. 8

"A person who intentionally aids another to commit a crime is also responsible for
any other
crime committed in carrying out or attempting to carry out the intended crime, if the other crime
was
reasonably foreseeable."

Bryant concedes he failed to object to the giving of the instruction; therefore, our standard
of review is whether giving the instruction was clearly erroneous. "Instructions are clearly
erroneous
only if the reviewing court is firmly convinced that there is a real possibility the jury would have
rendered a different verdict if the trial error had not occurred. [Citation omitted.]" State v.
Evans, 270
Kan. 585, 588, 17 P.3d 340 (2001).

"When reviewing challenges to jury instructions, we are required to consider all the
instructions together, read as a whole, and not to isolate any one instruction. If the instructions
properly and fairly state the law as applied to the facts of the case and a jury could not reasonable
have been misled by them, the instructions do not constitute reversible error even if they are in
some
way erroneous. [Citation omitted.]" State v. Mims, 264 Kan. 506, 514, 956 P.2d
1337 (1998).

For the charges of aggravated battery and conspiracy to commit aggravated robbery, the
aiding and abetting instruction was not necessary. Bryant was the only actor involved in the
aggravated battery against the victim, Castro, and the conspiracy to commit aggravated robbery
by
definition included an anticipatory theory of liability. See State v. Hobson, 234 Kan.
133, Syl. ¶ 2,
671 P.2d 1365 (1983) (conspiracy and aiding and abetting are separate and distinct offenses;
conspiracy requires an agreement to commit a crime, while aiding and abetting requires actual
participation in the act constituting the offense). However, the mere fact that this instruction was
given does not mean it was clearly erroneous and requires reversal of these two counts. In
essence,
Bryant asks us to consider this instruction in isolation, and this we will not do. Mims,
264 Kan. at
514. Considering the whole case against Bryant, which included a charge of felony murder based
on
either aggravated robbery or sale of cocaine, and the correct specific instructions given as to the
charges of aggravated battery and conspiracy to commit aggravated robbery, the jury could not
reasonably have been misled by the aiding and abetting instruction or returned a different verdict
on
the aggravated battery and conspiracy to commit aggravated robbery charges.

The impact of the aiding and abetting instruction on the third charge, felony murder, is
addressed by several authorities. See, e.g., State v. Kaiser, 260 Kan.
235, 242, 918 P.2d 629 (1996);
State v. Pink, 270 Kan. 728, 736, 20 P.3d 31 (2001); see also PIK Crim. 3d 54.06
(Comment citing
authorities for the notion that all participants in a crime are equally guilty, without regard to the
extent of their participation; "[t]he other crime must be reasonably foreseeable." Comment also
citing
Pink for express approval of the instruction in a felony-murder case.).
Kaiser rejected a challenge to
the aiding and abetting instruction by citing to earlier Kansas cases as follows:

"To [show guilt of one who aids and abets,] 'the law requires that the person
knowingly
associates with the unlawful venture and participates in a way which indicates that such person is
furthering the success of the venture.' State v. Hobson, 234 Kan. 133, 138, 671 P.2d
1365 (1983).
Mere association with the principals who actually commit the crime or mere presence in the
vicinity
of the crime is itself insufficient to establish guilt as an aider and abettor; however, when a person
knowingly associates with the unlawful venture and participates in a way which indicates he or
she
willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the
jury.
State v. Dunn, 243 Kan. 414, 429, 758 P.2d 718 (1988)." Kaiser, 260
Kan. at 242.

More recently, the Pink court approved the aiding and abetting instruction in a
felony-murder
case where the State's evidence established Pink and another went to a residence with the intent to
rob the occupants and some of the occupants were killed in the robbery. 270 Kan. at 736-38.
Pink
was charged with three counts of felony murder with aggravated robbery as the underlying felony,
and his co-felon was the apparent triggerman. At trial, Pink objected to the same instruction
which
Bryant challenges here and also asked for a mere presence instruction. As the Pink
court sorted out
the claim of instructional error, it stated as follows:

"The [aiding and abetting] instruction actually focuses on the crux of the ultimate
question
that appears to have determined the issue of guilt in the case. Pink contended through his
testimony
that he went to Wichita to participate in nothing more than the collection of a debt. The
prosecution's evidence, based upon Pink's statements, was that a robbery was intended and Pink
knew so. This was the manner in which both the prosecutor and defense counsel centered their
final
arguments to the jury.

"We should not as Pink suggests isolate only one instruction. Instructions Nos. 1
through
5 concern burden of proof, weight, and credibility of evidence. Numbers 6 through 8 relate to the
three counts of murder for which Pink was charged, and the elements of each are set forth.

"The inherently dangerous felony is listed as aggravated robbery. Instruction No.
9 explains
the elements of aggravated robbery. Instruction No. 10 is the one complained of by Pink.
Instruction
No. 11 explains 'intentional.' The remaining instructions deal with procedural matters. When the
complained of instruction is read with the other instructions as a whole, they make a proper
statement of law as applied to the facts of this case.

"The jury had been presented with Pink's evidence that he joined Bryant in Wichita
to
collect a debt. He admitted he knew Bryant had a gun but contended that Bryant was not going
to
use it to commit a robbery.

"The State's evidence, on the other hand, clearly showed that Pink and Bryant
went to the
residence with the intent to rob the occupants and that several people were killed in a robbery
'gone
bad.' It then became a question for the jury to determine which testimony was the most
credible, and
if the robbery was intended, whether the shooting deaths of the three men were reasonably
foreseeable.

"It is well established in Kansas that the mere presence of an accused at the time
and place
of crime alleged is not sufficient to make the accused guilty of the crime. State v.
Wakefield, 267
Kan. 116, 121, 977 P.2d 941 (1999). Aiding and abetting means to knowingly associate
with an
unlawful venture and participate in a way which indicates the participant is willfully furthering the
success of the venture. State v. Scott, 250 Kan. 350, 362, 827 P.2d 733
(1992).

"Pink's argument that the instruction allows him to be convicted of felony murder
based
upon a felony which was not inherently dangerous fails in light of the other instruction, as well as
the closing arguments of both counsel. The jury was required to find that Pink aided and
abetted
in the commission of aggravated robbery, which is an inherently dangerous felony sufficient to
uphold the felony-murder conviction. See K.S.A. 21-3436(a)(4)." (Emphasis
added.) Pink, 270
Kan. at 737-38.

Bryant's case also involves aggravated robbery as a felony underlying a felony- murder
conviction, but his case is actually simpler to resolve on the aiding and abetting instruction issue
than
Pink. Bryant failed to object to the instruction given at trial, did not ask for the mere
presence
instruction, and did not introduce evidence of a conflicting theory; instead, he merely rested after
trying to create doubt in the State's case in chief. While his jury was asked to consider two
alternative
underlying felonies ­ aggravated robbery and/or sale of cocaine ­ he concedes that
the jury only had
to find culpability as to one of these felonies, not both. He does not claim that the presence of
two
alternate felonies in either the charging document or the instructions creates a problem, and an
issue
not briefed is deemed abandoned. State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242
(1999). Instead,
the thrust of Bryant's claim is that it was clearly erroneous for the jury to use aiding and abetting
as
a theory of guilt on the underlying felonies of aggravated robbery and sale of cocaine. In closing
argument, the State distilled its theory of felony murder against Bryant as follows:

"And in this particular case, Henton Bryant is charged with felony murder under the
theory that he
either went there to commit an [aggravated] robbery or he went there for the purpose of being
involved in the sale of illegal narcotics. Both of those are inherently dangerous felonies, and if
that
was the purpose of going there, and if that's the end result where Charlie Gray was killed, then
you
have to find him guilty of that crime."

The record establishes that Bryant knowingly associated with the unlawful ventures of
aggravated robbery and the sale of cocaine. He participated in both inherently dangerous felonies
in
a way which indicated he willfully furthered the success of the ventures. Such evidence of his
guilt
as an aider and abettor was, under Kaiser, sufficient to go to the jury. It was then left
for the jury to
consider the State's theory and decide whether Bryant aided and abetted in the commission of an
aggravated robbery or sale of cocaine, both inherently dangerous felonies sufficient to uphold a
felony-murder conviction.

When the complained-of instruction is read with the other instructions as a whole, they
produce a proper statement of law as applied to the facts of this case. As in Pink, the
giving of the
aiding and abetting instruction was proper.

Issue 4: Did the district court commit error in trying Bryant jointly with
Castro?

Bryant next claims that he was entitled have his trial severed from Castro. This argument
is
without merit. He failed to request a severance under K.S.A. 22-3204, which permits a trial court
to order a separate trial for two or more defendants jointly charged with any crime "when
requested"
by either the defendant or the State. A defendant's failure to make such a request, however, is
deemed a waiver of the right to request severance. State v. Pham, 234 Kan. 649,
651, 675 P.2d 848
(1984). The language in State v. Pink, 236 Kan. 715, 728, 696 P.2d 358 (1985),
indicating the failure
to make such a request is deemed a waiver to the right of severance is disapproved.
See K.S.A. 22-3204 ("court may order a separate trial").

Finally, Bryant claims the cumulative effect of all the trial errors he has alleged denied him
his
right to a fair trial. Our formulation of the cumulative error rule is set forth in State v.
Lumbrera, 252
Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992).

"Cumulative trial errors, when considered collectively, may be so great as to
require reversal
of the defendant's conviction. The test is whether the totality of circumstances substantially
prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found
upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant."

We have read the record and considered each of the claims raised by Bryant that are
properly
before us and upon which he bases his claim of cumulative error. The evidence against him was
overwhelming. We conclude that he was not denied a fair trial.